ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
JOAN BOSWORTH, JENNIFER ANNE BOSWORTH Plaintiffs
- and -
KENNETH COLEMAN, NICOLA BERTINI and DAIMLER CRYSLER SERVICE INC. Defendants
Kenneth Arenson, for the Plaintiffs David N. Delagran, for the Defendants
HEARD: August 15, 2014
F.L. MYERS J.
REASONS FOR decision
Background
[1] The plaintiffs move for an order enforcing an agreement between the parties dated November 15, 2012. The plaintiffs seek compensation for alleged breaches of the agreement by the defendants and directions concerning the implementation of the agreement through to the trial of the action. The defendants cross-move for directions concerning the interpretation and effect of the agreement and for orders compelling the plaintiffs to produce additional documents.
[2] For the reasons set out below, the parties’ agreement will be implemented by way of a form of case management to be conducted at as many case conferences as are needed to ensure that the matter is prepared for a trial that will not exceed 10 days as agreed by the parties. The parties agreed to implement terms to make an unwieldy piece of civil litigation more proportionate, timely, and affordable. Assisting the parties to achieve a fair and just result on such a basis represents the best workings of the civil justice system.
The Facts
[3] The action involves a claim for damages sustained by the plaintiff Joan Bosworth and Family Law Act damages claimed by her daughter, Jennifer Anne Bosworth, in relation to a three-car motor vehicle accident that occurred on October 31, 2006. The Bosworths’ van was at the front of a line of vehicles. Mr. Coleman’s truck was next in line. Mr. Bertini crashed his large van into Mr. Coleman’s truck which, in turn, crashed into the rear of the plaintiffs’ vehicle.
[4] As the litigation unfolded, there were two separate actions with multiple claims and claims over. In addition to the initial injuries that Joan Bosworth sustained from the accident, she suffers from unsteadiness and leg instability that has led her to fall down many times since then. She has had 10 major falls since January, 2007 in which she has broken at least five bones and suffered sprains in three of the earlier breaks. The major issue in the litigation is whether the initial car accident caused the leg instability from which Ms Bosworth suffers, making the defendants liable for the serious injuries sustained by Ms Bosworth in those falls. The defendants allege that the Ms Bosworth had a pre-existing condition with at least three documented pre-accident falls. Until recently, the plaintiffs’ medical evidence has been equivocal on this issue at best.
[5] In 2012, Ms Bosworth’s husband passed away unexpectedly. Settlement negotiations in the litigation were not advancing as Ms Bosworth had hoped. She says she was disheartened to learn “of the several years delay for a trial of 15 days or more, with a jury, which appeared to be in the cards”. Accordingly, she instructed her counsel to find a way to get to trial as quickly as possible which, at that time, was a 10 day trial without a jury with dates available on the Toronto short trial list “only” 18 months away.
[6] The plaintiffs and the defendant, Mr. Coleman, each brought a motion for summary judgment in order to try to terminate the proceedings sooner. Both motions were dismissed and both parties appealed. Ms Bosworth testifies:
Prospects for a 10 day trial looked impossibly bleak. Desperate measures were called for. On his advice I gave Mr. Arenson instructions to try to negotiate a deal that would get us a 10 day trial. To make it attractive to Bertini’s insurer, on Mr. Arenson’s advice, I instructed him to offer to cap the plaintiffs’ claims at the available policy limits. Mr. Arenson approached [Mr. Bertini’s counsel] and after a while the Go Forward Agreement (“GFA”) of 15 November 2012 was made.
[7] The insurer for the defendant, Mr. Bertini, has policy limits of $1 million plus costs. Under the agreement, Mr. Bertini’s insurer would pay $200,000 to Mr. Coleman to settle his claims and $25,000 to the plaintiff, Jennifer Anne Bosworth, to settle her tort claims (leaving her Family Law Act claims outstanding). This left $775,000 of insurance available. Under the agreement, the plaintiffs agreed to limit their claims to the policy limits (inadvertently written at $750,000 rather than the $775,000 intended by the parties). In return, Mr. Bertini admitted liability leaving only the issues of damages and causation for trial.
[8] Paragraph 15 of the agreement provides as follows:
Bertini will withdraw his jury notice, or if needed, consent to an order striking the jury notice, and the matter will be booked for a short trial in Toronto [10 days]. The parties will confer with the court and each other to select a start date for the 10 day non-jury trial.
[9] As a result of the agreement, the matter was scheduled for a 10 day trial on the short trials list in Toronto to commence on June 9, 2014. In March of this year, the defendants’ former counsel was appointed to the bench. New counsel was contacted and requested an adjournment of the trial date before accepting a retainer. Counsel appeared in Scheduling Court on May 12, 2014. At that time, the defendants sought to adjourn the trial and the plaintiffs sought to bring this motion. Himel J. ordered the trial date vacated and scheduled the motion accordingly. Neither counsel sought costs or costs thrown away in respect of the adjournment.
[10] It is the position of the defendants’ new counsel that the agreement between the parties cannot bind the court in its scheduling of a trial of appropriate length. In addition, the defendants’ counsel is of the view that he is caught in an unenviable position of conflict between the contractual duty, “to make representations to the court that the trial of this action will only take 10 days; and [his] separate duty as an officer of the court to certify his belief as to the length of trial, which he believes to be more than 10 days”.
[11] The defendants point out that Ms Bosworth has had very substantial medical care over the past seven years since the motor vehicle accident. There is a long list of reports from treating professionals and experts. Among the reports is a new report, delivered by the plaintiffs’ counsel after the agreement was entered into, that, for the first time, purports to provide a definitive opinion that the motor vehicle accident caused the neurological damage responsible for Ms Bosworth’s many falls. This, the defendants’ counsel says, greatly expands the issues in the action. Furthermore, although the plaintiffs propose to call live testimony of “just” three fact witnesses and three or four experts, the defendants’ counsel wants to cross-examine at least 10 of the doctors whose reports the plaintiffs intend to file and rely upon.
[12] Before me, the defendants’ counsel submitted his honestly held professional view, as an officer of the court, that the trial would take more than 10 days to complete. While I accept this view, I reject the premise underlying it. That is, the trial will likely take more than 10 days if it proceeds in the ordinary manner in which the civil trial bar is used to proceeding.
[13] For reasons set out below, it is no longer appropriate to rest upon the historic way of doing things. Doing things as we have always done them has created a crisis of access to justice (or inaccessibility of justice). The Supreme Court of Canada recognized the challenge of ensuring access to civil justice in Canada earlier this year. In Hryniak v. Mauldin, 2014 SCC 7 at para. 1, Karakatsanis J. said that the system as we know it is broken:
Trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial. Without an effective and accessible means of enforcing rights, the rule of law is threatened. Without public adjudication of civil cases, the development of the common law is stunted.
[14] In this case, it is not the court that has sought to improve the accessibility to justice for the parties. Rather, the parties did so themselves. As Ms Bosworth testifies:
The [agreement] included a reduction in my claim of over $700,000 in return for a 10 day trial to be scheduled back then, which was December 2012, and that got us the 9 June 2014 date. That is also a fair measure of my desperation to get this trial over.
[15] As submitted by Mr. Arenson, the effect of the agreement was to take the delay, expense and distress of a long trial off the table. The issue is not whether the defendants’ counsel thinks that the trial, if conducted in a particular way, would take longer than 10 days. Rather, the question is: can justice be achieved for the parties in a timely, affordable and efficient manner through cooperation by counsel and with assistance from the court?
Analysis
Trial Length and Schedule
[16] The remaining issues in this action involve the determination of causation and damages in relation to Ms Bosworth’s injuries. Damages are capped at $775,000. Accordingly, proof of every last penny of loss is not required. While causation is very much in issue, particularly concerning the post-accident falls, the issue is no different in kind than issues of causation in any number of the thousands of personal injury claims made each year in Ontario. Does it take more than 10 trial days with reports from upwards of 20 doctors and cross-examinations of a dozen of them to resolve such an issue?
[17] In Hryniak, at para. 2, Karakatsanis J. called for a recognition of the modern reality that trials are too long and expensive:
Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just.
[18] Thorough case management and better controls on trial length are important arrows in the quiver of tools available to implement the culture shift mandated by the Supreme Court of Canada. Case managing trial length, including limiting time for witness examinations, can help tailor trials to be proportionate to the needs of the particular case. Doing so is not new in Ontario. Many judges already impose controls on trial length and conduct either at the pre-trial conference or at the trial stage. There are many high profile examples of active case management techniques having been utilized with great success. In Pente Investment Management Ltd. v. Schneider Corp. 40 BLR (2d) 244, an oppression remedy concerning a very public corporate takeover bid was tried in 10 days after careful and thorough case management. The disentanglement of Air Canada’s reservation system from that of Canadian Airlines was tried by Associate Chief Justice Callaghan under a highly structured and planned trial schedule in PWA Corp. v. Gemini Group Automated Distribution Systems Inc., 1993 CarswellOnt 170, 101 D.L.R. (4th) 15. More recently, the complex claims in the Nortel Inc. insolvency have proceeded with a heavily scheduled trial including time-limited examinations of witnesses. All of these cases had limited length and limited examinations despite involving very complex issues of fact and law and massive document productions.
[19] The status quo is unacceptable. As Karakatsanis J. wrote in Hryniak, at paras. 24-28,
[24] [U]ndue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes. The full trial has become largely illusory because, except where government funding is available ordinary Canadians cannot afford to access the adjudication of civil disputes. The cost and delay associated with the traditional process means that, as counsel for the intervener the Advocates’ Society (in Bruno Appliance) stated at the hearing of this appeal, the trial process denies ordinary people the opportunity to have adjudication. And while going to trial has long been seen as a last resort, other dispute resolution mechanisms such as mediation and settlement are more likely to produce fair and just results when adjudication remains a realistic alternative.
[25] Prompt judicial resolution of legal disputes allows individuals to get on with their lives. But, when court costs and delays become too great, people look for alternatives or simply give up on justice. Sometimes, they choose to represent themselves, often creating further problems due to their lack of familiarity with the law.
[27] There is growing support for alternative adjudication of disputes and a developing consensus that the traditional balance struck by extensive pre-trial processes and the conventional trial no longer reflects the modern reality and needs to be re-adjusted. A proper balance requires simplified and proportionate procedures for adjudication, and impacts the role of counsel and judges. This balance must recognize that a process can be fair and just, without the expense and delay of a trial, and that alternative models of adjudication are no less legitimate than the conventional trial.
[28] This requires a shift in culture. The principal goal remains the same: a fair process that results in a just adjudication of disputes. A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found. However, that process is illusory unless it is also accessible — proportionate, timely and affordable. The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure.
[Emphasis added; footnotes omitted]
[20] Counsel for the plaintiffs proposes to file a very large number of medical reports at trial and to call 3 or 4 experts to give live testimony. Counsel for the defendants proposes to cross-examine a large number of those witnesses. The time involved in conducting all of those examinations, if not scheduled, would exceed the time which the parties have agreed to commit to the trial. Neither counsel has proposed mechanisms to ensure that their clients receive the proportionate, timely and affordable resolution of their dispute that they want. Are all of the painstaking examinations of seven years of medical treatment records really required? Can they not be summarized? Do any proposed in-court examinations involve facts rather than credibility and, if so, might they be conducted out-of-court before the trial? Might it be possible for counsel to conduct shorter, tailored examinations? Might opening and closing arguments be submitted in writing or be made briefly? Can examinations-in-chief be adduced by will-say or affidavit? The latter is often used in trials on the Commercial List while the former is used in nearly all civil trials in the United Kingdom.
[21] The defendants’ counsel submitted that it is the role of counsel to determine if the trial will extend more than 10 days. This is an anachronistic view. Improving access to the civil justice system requires all users of the system (litigants, counsel, judges and administrators) to focus on ensuring that the system provides fair and just processes short of the unaffordable, painstaking trial of yester-year.
[22] Issues can be limited to those that matter. Examinations can be brief and focused. It may take more work for counsel to prepare a short examination.[^1] Any lawyer can raise every possible issue and ask every possible question. It takes little preparation to ask “What happened next?” as one leads a witness through a chronological book of documents. Doing so is easier and perhaps less risky than actually focusing on the key issues and determining a strategy to deal with them briefly and efficiently. Yet, counsel are expected to exercise such judgment for their clients.[^2]
[23] At minimum, the culture shift required by the Supreme Court of Canada makes efficiency a key priority in trial planning. It is very much the role of the court and the clients to promote access to justice by working with counsel to make trials shorter, run more efficiently, and thereby more affordable, timely and proportionate.[^3] For their part, judges will have to be prepared to increase their involvement and time commitment to assist the parties and counsel in case management. This will require appropriate administrative support as was also recognized by Karakatsanis J. in Hryniak, at para. 79.
[24] I need to stress in this case that it was the parties who agreed to limit the length of the trial. The plaintiffs have economic expert evidence suggesting their provable losses are in the range of $1.4 million. Their agreement to cap their losses at $775,000 represents a real compromise in their view. The clients’ agreement requires their counsel to take positive steps to adjust the trial process so as to meet the clients’ laudable goals. I am not determining that the parties’ agreement binds the court. Rather, in my view, the court should strain to assist parties with defining processes that make the civil justice system affordable and accessible for themselves as long as the result is consistent with the fair and just resolution of the dispute on the merits. I am confident that a fair and just adjudication of this dispute can be had in a 10 day trial.
Claim for Compensation for Trial Adjournment
[25] Among the relief sought by the plaintiffs is an order compensating them for the adjournment of the trial obtained by the defendants. In addition to seeking costs thrown away, they say that the delay in the trial will cause Joan Bosworth to suffer deductions from her damages under the provisions of subsection 267.5(1) of the Insurance Act. Although the agreement required the parties to choose a trial date, which they did, it is silent as to adjournments. To find for the plaintiffs would require me to imply a term into the agreement that no adjournments would be sought. No law was submitted to support the implication of such a term and I am not aware of any legal basis to do so. As to costs allegedly thrown away by the adjournment of the trial, the time for asking for such costs was when the adjournment was granted. That issue is no longer open.
Claim to Enforce Terms of the Agreement
[26] The plaintiffs also seek orders enforcing the terms of the agreement in their favour, including endorsing Mr. Bertini’s admission of liability, formally striking the jury notice, ordering the parties to book a short trial, and enforcing a clause dealing with defense medical examinations. They have cherry-picked the beneficial clauses. Mr. Arenson agreed that he would be satisfied if all of the terms of the agreement were enforced. I see no basis to grant an order for specific performance per se at this stage. It is sufficient for the plaintiffs’ purposes that the court is enforcing the trial length agreed upon by the parties. Even if the agreement concerning the length of the trial may not be binding on the court, I am still convinced that the parties’ agreement ought to guide the exercise of the court’s discretion concerning the process issues required to get this case ready for trial.
Defendants’ Motion for Production
[27] I also would not give effect to the defendants’ cross-motion seeking documents at this time. There is no information before the court as to how the document requests have been dealt with by the parties on discovery or otherwise. If the matters are not resolved as part of the case management efforts to be discussed below, a motion can always be brought before the Master in the ordinary course.
Result
[28] This case represents a natural step in the implementation of the culture shift required by Hryniak. It is not the court unilaterally or arbitrarily enforcing time limits upon the parties. Rather, for good reason and valuable consideration, the parties agreed to enhance the affordability and timeliness of the trial of their dispute. Whether the agreement is a formal settlement agreement under Rule 49 or not, it seems to me to be fair, just and appropriate to hold the parties to their bargain and require their counsel to adjust their expectations for trial.
[29] The trial judge has discretion to control the process at trial of course. But I can ensure that the trial is delivered to the trial judge in a workable and complete package so as to assist the trial judge to justly resolve the dispute in the timely, affordable, and efficient manner desired by the parties.
[30] I, therefore, dismiss the relief sought in paragraphs 1, 2 (a), (b), (d), and (f) of the plaintiffs’ notice of motion dated July 13, 2014. I do so on the terms set out as follows under the provisions of Rules 1.04, 1.05 and 49.9 (a). In addition, the following terms are also the directions requested in the notice of motion of the defendants in paragraphs (a) and (b). I dismiss, without prejudice, the remainder of the relief sought in paragraphs (c) to (g) of the notice of motion of the defendants for the reasons set out above.
[31] The terms and directions granted with respect to both motions are as follows:
a. the parties shall return to Practice Court to schedule a trial of no more than 10 days length on the first available date;
b. counsel for the parties will cooperate to schedule steps to ensure that the trial of this action is able to be conducted within 10 trial days as agreed by their clients. I will case manage the scheduling of the trial, on a minute-by-minute basis if necessary, in a series of case conferences, the first of which is to be scheduled during the week of September 8, 2014 on a date that is convenient to counsel to be confirmed with my Assistant;
c. communications with my office will be by email to my Assistant. Documents to be submitted will be attached to emails in searchable PDF format. Case law, if any, will be submitted by hyperlink.
[32] The plaintiffs seek costs of this motion on a partial indemnity basis in the amount of approximately $42,500. Mr. Arenson put 107 hours toward the issues in this motion including the first attendance before Himel J. on May 12, 2014. The fixing of costs is a discretionary decision under section 131 of the Courts of Justice Act. That discretion is generally to be exercised in accordance with the factors listed in Rule 57.01 of the Rules of Civil Procedure. These include the principle of indemnity for the successful party (57.01(1)(0.a)), the expectations of the unsuccessful party (57.01(1)(0.b)), the amount claimed and recovered (57.01(1)(a)), and the complexity of the issues (57.01(1)(c)). Overall, the court is required to consider what is “fair and reasonable” in fixing costs, and is to do so with a view to balancing compensation of the successful party with the goal of fostering access to justice: Boucher v Public Accountants Council (Ontario), (2004), 71 O.R. (3d) 291, at paras 26, 37.
[33] In my view, the defendants ought to pay costs to the plaintiffs due to their efforts to derail the hearing of this matter in the agreed upon manner. The defendants could have readily instructed their new counsel to adopt procedures necessary to fulfill the defendants’ agreement. Moreover, the matter is of importance to the plaintiffs. Had they not succeeded, the case could have been consigned to considerable further delay. Ms Bosworth’s evidence on that eventuality is quoted above and was not challenged on the motion. Nevertheless, the costs sought by the plaintiffs do seem somewhat excessive in light of the very limited quantity of materials filed. Moreover, I cannot award costs related to the attendance in Scheduling Court. In all, it is fair and just that the defendants, Mr. Bertini and Daimler Crysler Service Inc., be jointly and severally liable to pay to the plaintiffs their costs on a partial indemnity basis fixed in the amount of $25,000 inclusive of disbursements and taxes payable within 30 days.
[34] I note that the name “Crysler” is misspelled in the title of proceeding. The formal order enforcing the outcome of this motion may amend the title of proceeding to properly spell the name of the defendant, Daimler Chrysler Service Inc., if the parties so desire.
F.L. Myers, J.
DATE: August 20, 2014
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
JOAN BOSWORTH, JENNIFER ANNE BOSWORTH Plaintiffs
- and -
KENNETH COLEMAN, NICOLA BERTINI and DAIMLER CRYSLER SERVICE INC. Defendants
REASONS FOR DECISION
F.L. MYERS J.
Released: August 20, 2014
[^1]: “If I had more time, I would have written a shorter letter” (Blaise Pascal, “Lettres Provenciales” in Fred R. Shapiro, ed, The Yale Book of Quotations, (New Haven: Yale University Press, 2006) at 583).
[^2]: Counsel are expected “to assist the judge by simplification and concentration and not to advance a multitude of ingenious arguments in the hope that out of ten bad points the judge will be capable of fashioning a winner” (ibid. citing Lord Templeman in Ashmore v. Corp of Lloyd’s, [1992] 2 ALL E.R. 486 (H.L) at 493). (See also, Authorson (Litigation Guardian of) v. Canada (AG), [2002] O.J. No 2050, 161 OAC 1 (Div Ct) at para 11).
[^3]: As Lord Roskill aptly put it in Ashmore v. Corp of Lloyd’s, ibid. at 488, “It is part of [the court’s] duty to identify the crucial issues and to see they are tried as expeditiously and as inexpensively as possible. It is the duty of the advisers of the parties to assist the trial judge in carrying out this duty.”